Retaliation: What all Employers Need to Know
- Since 2011, retaliation claims have increased at a higher rate than any other type of EEOC charge.
- Retaliation claims allege that an employer took an adverse action against an employee (e.g., termination, demotion, suspension) because he/she engaged in a “protected activity”.
- What is a “protected activity”?
An employee engages in a protected activity whenever he/she files an internal complaint alleging discrimination and/or harassment, files an EEOC charge or testifies in favor of another employee who filed a lawsuit or EEOC charges alleging unlawful harassment and/or discrimination.
- Why plaintiff’s employment lawyers love retaliation claims:
- Retaliation claims are easier to prove that discrimination and/or harassment claims because proving the truth of the underlying harassment and/or discrimination charges is not required.
- Retaliation claims result in higher jury verdicts and frequently result in substantial punitive damage awards.
- The chronology underlying a retaliation claim may make it difficult to defend. For example, if a termination comes hard on the heels of protected activity, the employer can expect to defend the retaliation claim inside its own 20 yard line.
- Risk management of retaliation claims.
Nearly every federal and state statute governing the employment relationship prohibits retaliation against an employee when he/she engages in protected activity under the statute. Accordingly, employers contemplating termination of an employee who has engaged in protected activity whether by filing a workers’ compensation claim, a whistleblower complaint or a complaint regarding the Fair Labor Standards Act or filing a complaint or charge alleging unlawful discrimination and/or harassment should review the facts with employment law counsel before terminating the employee in question.